Photo: A train of oil cars sits parked outside Jasper, Alberta, not far from the path of the current Trans Mountain Pipeline.
What a day.
This morning, the Federal Court of Appeal overturned the federal cabinet orders approving the expansion of the Kinder Morgan Trans-Mountain Pipeline. And this afternoon, the shareholders of Kinder Morgan Canada Limited agreed to sell the Trans Mountain Pipeline and Expansion Project to the Government of Canada, leaving the government as the brand-new owners of a pipeline that it cannot expand, at least for a now.
This series of events is the latest twist in the push to expand the 65-year old pipeline that carried oil from Edmonton, Alberta to Burnaby, British Columbia.
The points included in the court ruling are quite reasonable. The court ruled that the National Energy Board report on which the cabinet based its approval “unjustifiably defined the scope of the project under review not to include project-related tanker traffic” and that the federal government “fell well short of the minimum requirements” to consult with Indigenous communities in the third and phase of the pipeline consultation process.
Due diligence is important and the court provided the federal government with a clear path to resolving these issues. Politics aside, all Canadians should expect that their federal government will not cut any corners when approving larger industrial infrastructure projects such as major oil pipelines.
Now to the politics.
This court decision was not a result of any actions taken by the Alberta government, but it could be a severe setback to Premier Rachel Notley’s New Democratic Party government. This summer the NDP cabinet held an outdoor press conference where ministers and NDP MLAs were seen celebrating the start of the project with cheers and high-fives. All that was missing was a flight-suit and a giant ‘Mission Accomplished’ banner.
The Alberta NDP have tied the success of this pipeline expansion to justifying the introduction of a carbon tax, their much-praised Climate Leadership Plan, and promised future balanced budgets. Notley has donned the metaphorical Captain Alberta uniform and has become one of Canada’s strongest advocates for oil pipeline expansion, which would be a popular position if she is able to deliver the construction of an actual pipeline.
“We built a pipeline!” was going to be a central plank of the NDP’s re-election campaign.
The NDP’s path to re-election in 2019 was always going to be narrow and steep, but the latest twist in the Trans Mountain Pipeline saga should convince Notley to aim some significant political pressure on Ottawa to resolve this problem ASAP.
As Postmedia columnist Graham Thomson wrote in the Edmonton Journal today, “This might not be the end of the Alberta NDP government — but you can see it from here.”
The delay also puts already uncertain Liberal Party fortunes in Alberta at risk. Natural Resources Minister Amarjeet Sohi, the Member of Parliament for Edmonton-Mill Woods, is now responsible for the construction of a pipeline that the cannot be built until the issues identified by the court are resolved. Sohi and Prime Minister Justin Trudeau should be held accountable to their commitment to build a new relationship with Canada’s First Nations communities.
The court ruling stated that the issues related to consultation with Indigenous communities are “specific and focussed” and could result in “a short delay,” which is positive for the future of the now Government of Canada-owned project, but not politically expedient. The next federal election is scheduled to take place in October 2019.
I am sure I will have more to write about soon, as Premier Notley is expected to make a live televised and Facebook-streamed address to Albertans at 6:00 p.m. today.
UPDATE: Notley announced in her address that the Alberta government will withdraw from Ottawa’s climate change plant. Notley is also calling on the federal government to challenge the Federal Court of Appeal ruling at the Supreme Court, call an emergency session of Parliament to fix the National Energy Board, improve consultation and accommodation relating to Indigenous peoples in the way they deserve, and…get construction re-started.
4 replies on “Roll up the ‘Mission Accomplished’ banner. Federal court halts the Trans Mountain Pipeline expansion project on the same day Kinder Morgan sells it to the Government of Canada.”
The thing is, based on the rhetoric from groups out on the Left Coast that are so implacably opposed to this project, I don’t know whether any amount of remediation of the approval process in line with the Court’s ruling will be enough to get it built. No increase in tanker traffic, not even one ship per week, will be acceptable to marine environmentalists who think there is already too much; and the coastal Indigenous groups aren’t likely to accept any “consultation” that doesn’t end with a complete cancellation of the project.
The sad thing about this is that the Notley government will get unfairly blamed for this, even though there is not one single solitary thing that a putative Jason Kenney-led UCP government could have done differently to avert this ruling. It’s all happening at the federal level, and Alberta is simply along for the ride. But I think the Federal Court of Appeal has effectively torpedoed the Notley government’s already slim chances of re-election in 2019.
I agree in general with you. I don’t know how possible it is to have “meaningful” consultation when there are two fairly intractable and opposed positions, but I suppose we will see. One might think meaningful consultation would mean getting feedback and making adjustments, but with BC’s challenging geography there are a limited number of routes for the pipeline so its not like it can be easily re-routed. It would also seem to make the most sense to use the existing right of way, so again I am not sure what can adjusted here either.
Presumption:
The interesting thing is
(even hinted at in the court ruling: “issues related to consultation with Indigenous communities are “specific and focussed” and could result in “a short delay,””)
is the presumption that … after a ‘meaningful’ consultation that can be done quickly (chop, chop)
… the pipeline construction can/will proceed.
That’s the very same attitude that got us to this awkward spot.
Good article Dave,
The ruling from the Federal Court of Appeals is not getting enough in-depth coverage. The Court outlined the process necessary for Trans-Mountain to be properly approved, which is a positive for Alberta.
The NEB failed to adequately complete Phase III Consultation with Aboriginal groups. Phase III is accommodation, and it is the responsibility of the government to accommodate some (not all) infringements on Aboriginal rights. The Court notes in the ruling this should be a ‘meaningful’, ‘specific and focused’ as well as result in a ‘short-delay’. This is not a request to start from scratch, but to improve a deficiency in the consultation process.
The second major flaw was the NEB report failing to include environmental impacts of tanker traffic. I would wager that this part of the report has been in progress since the lawsuit was originally filed. The NEB could realistically have an updated report ready for Cabinet in a year or less.
Realistically the Federal Government will likely appeal and request construct resume during the time it takes for SCC to review the case. During this time an updated report will be completed and the GOC will prepare for consultation.